- (1.) This application is at the instance of the defendant no.2 and is directed against the order dated April 12, 2013 passed by the learned Civil Judge (Senior Division), 10th Court, Alipore in Title Suit No.2738 of 2010 thereby rejecting an application under Section 8 of the Arbitration and Conciliation Act, 1996.
(2.) Now, the question is whether the impugned order should be sustained. Upon hearing the learned Counsel for the parties and on perusal of the materials on record, I find that the plaintiff/opposite party no.1 herein instituted the aforesaid suit for permanent injunction and other consequential reliefs. By an agreement dated July 23, 2001 between the defendant no.2 and the Kolkata Municipal Corporation, the defendant no.1 had granted the exclusive right of construction of a commercial complex at the suit premises as described in the schedule to the plaint in favour of the defendant no.2. After the completion of the said commercial complex, an agreement dated September 26, 2006 was held between the defendant no.2 and the plaintiff relating to providing for car parking space, demarcation of open terrace, other rooms, etc. and the according to the said agreement, the plaintiff took possession of the areas mentioned in the said agreement but failed to pay the balance amount of Rs.1,20,00,000/- by April 2007 and the defendant No.2 had appropriated the sum of Rs.30 lakh paid by the plaintiff as pre-determined liquidated damages in terms of the agreement. The defendant no.2 terminated the said agreement and thereafter, the plaintiff instituted the said suit praying for reliefs already stated. In that suit the defendant no.2 filed an application under Section 8 of the Arbitration and Conciliation Act, 1996, which was rejected by the impugned order.
(3.) In order to appreciate the matter in dispute, it will be proper to set out the reliefs sought for in the plaint:- a) A permanent injunction restraining the defendants from asserting, that the plaintiff failed or neglected and/or were not ready and willing to perform its part of the said agreement and/or that the plaintiff was in possession or occupation or had the use of the said additional facility and/or that the defendants are not entitled to refund the said sum of Rs.30 lakhs, paid in terms of the said agreement and/or the plaintiff is not entitled to adjust its claim for refund of the said sum of Rs.30 lakhs, against the amount of money, paid as rent, in respect of the 1st floor of the said premises, by the plaintiff to the defendant no.2; b) Costs of the suit; c) Such further or other relief or reliefs that the plaintiff may be entitled to in law or equity. ;